' This appeal is directed against the judgment, dated 13-10-1983 made by the District Judge, Quetta whereby he made the award rule of Court.
2. The facts in brief are that respondent filed an application under section 8 of the Arbitration Act in the High Court of Sind and Baluchistan at Karachi on 11-12-1974 stating therein that the parties had entered into a contract for the construction of Nehar bridge of Karachi-Kalat-Quetta Road vide agreement dated 15-2-1968. During the execution of the work a dispute arose and the applicant approached the respondent for the settleinent of the dispute. The appellant failed to settle the dispute, thereupon he was called upon to appoint an Arbitrator as per clause 25 (a) of the agreement. The appellant did not nominate any Arbitrator. The respondent made claim to the extent of Rs, 1,100,000 excluding interest. It was averred in the application that the agreement was executed within the District of Karachi and financial transaction also took place in the District of Karachi ; as such the Court had the jurisdiction to dispose of the application.
' Mr. Zahid Hussain Superintending Engineer was appointed as Sole Arbitrator with the consent of the parties, vide order of the Court dated 3-2-1975. The Arbitrator gave his award in the sum of Rs, 5 55,419 in favour of the respondent. The award dated 2-6-1975 was filed in the High Court of Sind/Baluchistan on 5-8-1975.
2. The appellant made an application under sections 30 and 33 of the Arbitration Act, for setting aside the award, before the High Court of Sind/ Baluchistan at Karachi on 30-9-1975. In this application it has been alleged that reference to the Arbitrator was invalid; the application was made in respect of time-barred claim ; reference to the Arbitrator was without jurisdiction ; the Arbitrator has misconducted the proceedings and he granted the claim to the applicant without any evidence, the Arbitrator was partial in the proceedings towards the applicant ; the award has been made after the expiry of statutory period. In reply to the objections respondent has denied all the allegations made by the appellants in their application. The High Court of Sind transferred the case to the High Court of Baluchistan on the request of Advocate-General, by means of order dated 27-5-1976. The case was transferred to the learned District Judge for trial by this Court vide order, dated 20-8-1976. The following issues were framed by the learned District Judge :- "(1) Whether Arbitration on reference of the Court was invalid on the ground that application was made in violation of the provisions of Arbitration Act and that the same was in respect of time- barred claim ?
(2) Whether the Arbitrator has misconducted himself and the proceedings, if so to what effect ?
(3) Whether the award has been made after the expiry of prescribed statutory period, if so to what effect ?
(4) Whether the Arbitrator was an incompetent person to act as Arbitrator ?
(5) Whether the plaintiff has obtained arbitration award by misrepresentation of facts ?
(6) Whether the award is liable to be set aside ?
(7) Relief."
' He decided the issues in favour of the respondent.
4. I have heard learned counsel for the parties. The learned Advocate-General has stated that the cause of action accrued at District Lasbella where the construction was carried out and payments were made. The High Court of Sind and Baluchistan did not have any jurisdiction in respect of matters pertaining to Bella, therefore, the application dated 11-2-1974 submitted by the respondent before the High Court of Sind and Baluchistan was incompetent. Thus all the proceedings recorded by the High Court in exercise of its jurisdiction including the appointment of the Arbitrator were without lawful authority. This argument has no force. The respondent in his application under section 8 of the Arbitration Act has specifically stated that the agreement was executed in District Karachi and financial transaction also took place in District Karachi, as such that Court had the jurisdiction. This contention of the applicant/respondent has not been disputed. It is also admitted fact that before the dismemberment of One-Unit, the District Lasbella was a part of Karachi. In accordance with section 20(c), Cr. P. C. a suit can be filed in a Court within the local limits of whose jurisdiction, the cause of action arises in whole or in part. It is stated by the respondent, that the contract was executed in the District Karachi, thus a part of cause of action had arisen at Karachi, therefore, that Court had the jurisdiction. Apart from it the Arbitrator was appointed by the consent of the parties and no objection either to the jurisdiction of the Court or to the appointment of the Arbitrator was taken by the appellants. The appellants submitted to the jurisdiction of the High Court of Sind and Baluchistan. They did not take objection when the Arbitrator was appointed. They appeared and contested the matter before the Arbitrator. After the decision was made against the appellants, as an after thought this objection was taken. In East India Trading Company v. Badat and Company Bombay (1), it had been observed that in a suit on an award the agreement to go to arbitration constitutes an important material and
(1) AIR 1959 Boni, 414 necessary part of the cause of action, and if that part of cause of action has arisen in Bombay, the Court has undoubtedly jurisdiction. In Shalimar (Pak.) Ltd. Faisalabad v. Pakistan (1), the same view was taken. Under section 21, C. P. C. Objection to the jurisdiction must be taken in the Court of first instance, at the earliest possible opportunity ; but no such objection was taken. A decree passed by a Court not having territorial jurisdiction over the subject-matter of the suit is valid and binding if objection to the jurisdiction of the Court had not been raised at the earliest. The learned Advocate- General has referred to M. Afzal v. Board of Revenue and another (2), wherein it has been observed that by mere submission in the capacity, of a respondent, to the authority of the Member, the petitioner could not be thought to have conferred a jurisdiction on the Member which he did not possess. He has also referred to Chittaranjan Cotton Mills v. Staff Union (3), in support of his contention that where the Court is not properly constituted at all the proceedings must be held to be coram non judice and therefore non existent in the eye of law. The cases cited by the learned Advocate-General are not applicable to the facts of the present case. As observed earlier the High Court of Karachi had the jurisdiction in the matter, in view of the assertions of the respondent made in his application under section 8 of the Arbitration Act and not denied by the appellant. No evidence was led by the appellants to substantiate their contention. No such objection was taken in their objection petition filed by the appellant. For the first time this objection has been raised in this Court. The learned Advocate-General has referred to Rashid Ahmad v. State (4), Yousuf Ali v.
Muhammad Aslam Zia (5) and Khuda Bakhsh v. Khushi Muhammad and others (6) and submitted that the question of jurisdiction could be raised at any time and an order void ab initio on account of want of jurisdiction is a nullity and could be ignored. It has already been observed that the order of reference made by the High Court of Karachi is not a nullity, therefore, the authorities are inapt.
The suit based or a contract could be filed at any of the places where a part of cause of action has arisen. The suit could be filed either at Karachi or at Lasbella. When the application for appointment for Arbitrator was made, there was joint High Court of Sind and Baluchistan. Separate High Court of Baluchistan was made on 1-2-1976. The application was moved in the High Court of Sind which had the original jurisdiction. In Ali Muhammad and another v. Fateh Bibi and another (7), the petitioner stood by and allowed Deputy Custodian and Custodian to exercise the jurisdiction and when the adjudication went against them, as an afterthought, and at a late stage, they challenged their jurisdiction to do so. It was observed relying on Ghulam Mohyudin's case (8), that even though the impugned order is without jurisdiction, the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess. I, therefore, see no force in this contention.
5. It was next contended that the dispute had arisen at Lasbelia which is part of Kalat Division with effect from 1-6-1970. The application should have been filed in the Court of Qazi Lasbella. This point has
(1) 1979 CLC 546 (2) PLD 1967 SC 314
(3) PLD 1971 SC 197 (4) PLD 1972 SC 27
(5) PLD 1958 SC 104 (6) PLD 1976 SC 208
(7) 1982 SCMR 633 (8) L D 1964 SC 829 already been discussed. It is stated that this Court should have transferred the case to the Court of Qazi at Lasbela. The action taken by this Court in transferring the case to the District Judge, Quetta is not a nullity. Apart from the fact that the appellant submitted to the jurisdiction of the District Judge ; section 24, C. P. C. Confers upon the High Court general power to transfer, withdraw and transfer at any stage a pending suit, appeal or other proceedings either suo motu or upon an application made by 3 party, therefore, the transfer of the case by the High Court to the District Judge was legal and proper. Additionally the appellant was sued as a defendant. Under section 20, C. P. C. The suit can be instituted where the defendant resides. As the principal office of the defendant is at Quetta, therefore, the transfer of the case to the District Judge, Quetta was legal and proper. The learned Advocate-General has referred to Agha Mahboob Shah v. Baluchistan through the Secretary to Government and others (1). The case cited by the learned counsel does not apply to the facts of the case. The case was transferred by this Court, which, it is competent to do so.
6. It is next contended that the contract work had concluded in the year 1969 but the application for the appointment of Arbitrator was filed on 11-12-1974 which was barred by time and this objection was taken by the appellant, but the same was ignored. In the application under section 30 the appellant had stated that the entire claim before Arbitrator was time-barred. No evidence was led by the appellant to prove this contention. It has been stated by the respondent that the work was completed in the year 1971 and the application was filed before the Court on 11-12-1974. No objection about the limitation was taken before the Arbitrator which was competent forum to make the investigation. The reliance has been placed by the respondent on Karachi Shipyard and Engineering Works Ltd. v. Muhammad Aslam Khan (2) wherein it has been observed that question of limitation is a question of law and fact and cannot be determined without an enquiry into facts.
Since the Arbitrator is the sole Judge of fact and law in regard to matters falling within the arbitration c clause. In the application dated 11-12-1974 the respondent has stated that he requested the defendant to appoint an Arbitrator as per clause 25-A of the Agreement, but the defendant did not appoint the Arbitrator and therefore he has moved the application in the Court.
The party to whom notice has been given has a right to make the appointment within 15 days from the date of service. Article 181 of the Limitation Act read with section 8 lays down that the right to apply for the appointment of the Arbitrator arises on the expiry of 15 days of the notice. The time would run against the respondent under section 8. Of the Arbitration Act if the appointment is not made within 15 days after the service of the notice. Article 181 of the Limitation Act prescribes the period of 3 years which would commence when the right to apply accrues which is determined with reference to the date on which date 15 days' notice expires. The record is silent when the notice was given ; but it must have been given after the completion of work. It is stated by the respondent in his application that he requested the defendant but the defendant did not nominate the Arbitrator. Such objection could have been raised before the Arbitrator as held in Andison Co- operative Industries Limited Sialkot v. Ch. Nazir Ahmed D Cheema and others (3). As the enquiry could only be conducted by the Arbitrator, and only then it can be determined whether the claim of the respondent was barred by time, This contention has equally no force.
(1) PLD 1982 Quetta 84 (2) PLD 1979 Kar. 635
(3) 1970 SCMR 531
7. It is next contended that the Arbitrator has misconducted himself. He has not given any reason in support of his finding. It is stated that the plaintiff had made claim against the appellant on 11 counts ; but the Arbitrator has not referred to each item and gave the consolidated amount of Rs, 55,419. It has been stated by the respondent in the reply that the defendant (appellant) at one stage admitted correctness of the plaintiff's claim to the tune of Rs, 11 lakhs. No rejoinder to this assertion has been made. The Arbitrator has stated in his award that the defendant were confronted with the documentary evidence and were required explain their position. He has further stated that he has gone through the entire documentary evidence considered the statements of the parties, their claim and replies and given full thought to each and every aspect of the case. The record shows that the Arbitrator has taken proceedings on various dates. The Arbitrator is not supposed to give reason on each item. The complete statement of account was before him. The documents were produced by the parties. The M. Bs were also before him. The Arbitrator was a technical man and in the present case a technical man is to decide the dispute on the basis of official record which was before him. The award of Arbitrator is not a judgment and he is not bound to record detailed reasonings as a Court of law. An award can be set aside under section 30 of the Arbitration Act on the ground that Arbitrator ha misconducted himself or the proceedings. It is not open to a Court in the case of an Award otherwise valid to consider the correctness of the decision of the Arbitrator or the reasoning by which the conclusion is reached. The defendant has all along submitted to the proceedings of the Arbitrator. There is no evidence of misconduct. Mere allegation of misconduct is not sufficient. The Court on an application for setting aside the award, cannot be constituted as a Court of appeal. In S. Zahir Hussain v. Province of Sind and another (1) it has been observed that defendants having consents to appointment of Arbitrator, having taken part in proceedings before such Arbitrator, and having taken a chance for a favourable decision, are now, therefore estopped from challenging the award on this ground that the Arbitrator was not appointed in accordance with section 8 of the Arbitration Act. In Lahore Development Authority v.
Mess, s Khalid Javed & Co. (2) it was observed "despite the declared policy of the Government for ensuring speedy and inexpensive justice we find, all too frequently, that even Government Departments and statutory bodies indulging in wasteful and unnecessary litigation. It is therefore a matter of some regret that when an award is given by the Arbitrators, who are persons of their own choice and the award made is in a proceedings Conducted in a forum desired by them but which is not wholly in accord with their point of view the Department of Government concerned instead of accepting the said award with good grace rushes to the Court with frivolous objections to prevent it from becoming the Rule of the Court".
' As many as 7 issues were framed by the learned District Judge. Sufficient opportunity was given to the appellants to produce evidence but they failed to lead any evidence. In such circumstances it is too late in the day to challenge the finding of the Court.
' In the result I see no force in the appeal, the same is consequently dismissed with costs.
(1) 1981 CLC 379
(2) 1983 SCMR 718